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130
Itannwccrci v. Solomon Singho
1978Present: Pathirana J., Sharvananda J. and
"Wanasundera, J.
9
B. SOLOMON RANAWEERA, Defendant-Petitioner
and
W. SOLOMON SINGHO, Plaintiff-RespondentS. C. 33/76 (Inty. )—D. 6. Kurunegala 2158/P
Partition action—Death of'a party before decree entered—Failure tosubstitute or bring legal representative on record—Whether decreenull and void—Administration of Justice Law, section 651 (1) —
Effect.
Admission—Mistake of law—Whether admission of Counsel in such acase binding on party.
Where the provisions of section 651 (1) of the Administration ofJustice haw apply to a decree entered in a partition action suchdecree is not rendered null and void by reason of a party to theaction being dead at the time of the decree being entered withoutproper substitution or by the failure to appoint a pe son to repre-sent the estate of the deceased party. The decree is va’id and bindingand is final and conclusive for all purposes against all personswhomsoever and it is not open to the parties in the case to attackthe validity of the said decree.
SILARVAN.-YX'JOA, J.—lianuwceru v. Solomon Singho
137
An admission made by Counsel for one of the parties that sucha decree was null and void for failure to make proper substitution isa mistaken uamission in law and is not binding on sucn party.
A.PPEAL from an Order of the District Court of Kurunegala.
Nimal Senanaydke, with K. P. Cuneratne and S. Mathew, forthe 1st defendant-petitioner.
C. Thiagalingam, Q. C., with U. C. B. Ratnayake, for the 2ndplaintiff-respondent.
April 21, 1978. Shahvananda, J.
In this action the plaintiffs sought to partition the land calledSerugaskumbura, depicted as lot 2 in final partition plan No. 1768dated 15.2.61 and in extent 2 roods and 39.84 perches. The corpusis depicted in plan No. 1853 dated 21.7.64, filed of record marked‘X’.
One Mathias Perera was admittedly the original owner of anundivided 281/284 share, less J perch, less 13 X 216 sq. ft. of theland called Serugaskumbura, in extent 3 roods 11.7 perches.Under and by virtue of interlocutory decree entered in partitioncase No. 6372, the said Mathias Perera was declared entitled toan undivided 281/284 share, less £ perch, less 13X216 sq. ft.of the land. Mathias Perera’s share is represented by the definedLot 1 in plan No. 3189 dated 22.2.51 made by Wright, licensedSurv(?yor. It would appear that the said Lot 1 in plan No. 3189came to represent the undivided interests of Mathias Pereraout of the entire land Serugaskumbura, consisting of Lots 1 and 2in plan No. 3189, and this Lot 1 thus acquired identity as a dis-tinct, divided lot corresponding to the share of Mathias Pererain the bigger corpus. Pending partition case No. 6372, MathiasPerera, by deed No. 1868 dated 16.3.52, gifted “ the premisesdescribed in the schedule thereto and all the estate, right, title,interest whatsoever of the donor in the said premises, whichsaid premises have been held and possessed by the donor underand by virtue of the final decree that will be entered in case No.6372 in the District Court of Kurunegala to four persons, viz ;
Don Rapiel Perera, (b) Don Juwan, (c) Wijesuriya Aratchi-lage Anamma, and (d) Migelge Anthony ”. The schedule referredto in the said deed of gift reads as follows : —
“ All that right, title and interest that the donor hereinwill be declared entitled to and allotted in the final decreein partition case No. 6372 of the District Court of Kurunegalanow pending in respect of the land described herein below. ”“All that allotment of land marked Lot 1, in extent 3 roods
138
SHARVANANDA, J.—ltanawecra v. Solomon, Sinjho
and 7 perches of the land called Serugaskumbura
and bounded on the north by the garden of ThepanisFernando, east by the main road and Lot 2, south by thegarden of Mohamed Abdulla, and west by the garden of R. M.
Mudalihamyand which said land depicted in plan
No. 3189 dated 22.2.51 made by Wright, Licensed Surveyor,of the land called Serugaskumbura and is bounded, accordingto the said plan No. 3189, on the north by the field of R.
Thepanis Fernandoeast by the main road, south
by the garden of Podi Singho and Mohamed Abdulla, andwest by the field of Thepanis Fernando, containing in extent3 roods and 11.7 perches
An examination of the deed of gift No. 1864 shows' that whatwas gifted was not only the right, title and interest that thedonor will be declared entitled to and allotted in the final decreein partition case No. 6372, but also all the allotment of definedland marked Lot 1, in extent 3 roods and 7 perches, in PlanNo. 3189 out of the entire land depicted in Plan No. 3189 inextent 3 roods 11.7 perches.
Final decree was thereafter entered in case No. 6372/P andMathias Perera, who had died by that time, was allotted Lot 2in final partition Plan No. 1768 dated 15-2.61. The present plaintiffsstate that by operation of law, the right, title and interest of thesaid Mathias Perera out of the corpus that was partitioned, viz.,Lot 2 in final partition Plan No. 1768 dated 15.12.61, devolved andvested on the said four donees in equal shares. While the saidpartition action No. 6372/IJ was still pending but after the deathof Mathias Perera, Rapiel Perera, the first-mentioned donee ondeed of gift No. 1868, without disclosing the terms of the saiddeed No. 1363, purported to transfer the entire holding of MathiasPerera to the 1st defendant by deed No. 1242 dated 18.6.59. Theplaintiffs in this case base their title to shares in the land, viz., Lot2 in plan No. 1768 and which is the subject matter' of the presentaction, on the aforesaid deed of gift No, 1868 and on the finaldecree in case No. 6372/P.
The 1st defendant contests the validity of the aforesaid finaldecree in case No. 6372/P and states that the said decree is nulland void in view of the following reasons: —
That there was no proper substitution according to law of
any person in the room of Mathias Perera.
That there was no proper substitution according to law of
any person in the name of Mohamed Salik.
StIARVANANDA, T.—Itanawccra v. Solomon Sinyho
13!)
That there was no proper substitution according to lawof any person in the name of Johana Perera.
(a) That the final decree of the said case was amended impro-perly and not according to law.
At the trial, the two issues, Nos. 5 and 14, were tried as pre-liminary issues. These two preliminary issues were founded onthe objections of- the 1st defendant to the validity of the finaldecree in 6372/P on the ground of failure to substitute the properlegal representatives in place of the deceased parties. The DistinctJudge answered the preliminary issues in favour of the 1stdefendant and dismissed the plaintiff’s action with costs. Anappeal was preferred from this judgment^ to this Court, and thisCourt, by ]udgment dated 2.5.75, set aside the judgment anddecree of the learned District Judge and sent the case back fora re-trial on all the issues and on any further issue that mightbe raised and accepted by the Court.
When the case went back for re-trial, it was agreed betweenthe parties that the plaintiffs should file an amended plaint inconformity with section 33 of the A. J. Law No. 25 of 1975. Theplaintiffs, thereafter, filed amended plaint. In the amended plaint,the plaintiffs, as a matter of law, admitted that the final decreein case No. 6372/P was null and void for want of proper substi-tution of deceased parties and hence bad for non-compliancewith the provisions of the Partition Ordinance and stated thatthe donees on deed No. 186'8 and their predecessors-in-title havebeen in prescriptive possession of the said Lot 2, the subjectmatter of this action, and allotted shares on that basis. Theplaintiffs also stated that, in the event of the final decree in6372/P being held to be null and void by the operation of law,the right, title and interest of Mathias Perera from and out ofthe said premises, viz., Lot 2, dcvelved on and vested in the saidfour donees. The defendant-petitioner, by his amended answer,objected to the change in the amended plaint, and at the preli-minary investigation Counsel for the defendant-petitioner objec-ted to the issues raised on behalf of the plaintiffs and stated thatthe plaintiffs were now seeking to reverse their earlier positionset up in their original plaint. The learned District Judge, by hisorder dated 28.6.76, accepted all the issues raised by Mr. Thiaga-lingam for the plaintiffs. Against the said order, the defendant-petitioner has filed this interlocutory appeal.
At the hearing of this application, Counsel submitted that thelearned District Judge has erred in permitting issues 1 to 13 to.be raised and that since Mr. Thiagalingam, who was Counsel
140
SlLAllVANANDA, J.—Hanawcara v. Solomon Sinrjho
appearing lor the plaintiffs, had agreed that issue 10 “ Wasthe final decree in case No. 6372/F entered on 23.3.62 bad in law ? ”should be answered in the affirmative, judgment should beentered dismissing the plaintiffs’ action.
At the hearing of this application, attention of both Counselwas drawn by this Court to section 651(1) of the Administrationof Justice (Amendment) Law, No. 25 of 1975, which had beenoverlooked by both parties at the argument before the DistrictCourt. This section runs as follows : —
“651 (1) Save as provided by sub-section (5), the interlo-cutory decree and final decree of partition shall, subjectto the decision on any appeal which may be preferred there-from and subject to the provisions of sub-section (3), begood and sufficient evidence of the title of any person as toany right, share or interest awarded therein to him and befinal • and conclusive for all purposes against all personswhomsoever, whatever right, title or interest they have, orclaim to have, to or in the land to which such decrees^ relateand notwithstanding any omission or defect of procedureor in the proof of title adduced before the Court or thefact that all persons concerned are not parties to the particularaction : and the right, share or interest awarded by any suchdecree shall be free from all encumbrances whatsoever otherthan those specified in that decree.
In this sub-section, “omission or defect of procedure”shall include an omission or failure—
to serve summons on any party,
to substitute the heirs or legal representative of a party
who dies pending the action or to appoint a person torepresent the estate of the deceased party,
to appoint a guardian-ad-litem over a party who is a
minor or a person of unsound mind. ”
“ (6) The provisions of this section shall be deemed to have-come into operation on the 1st day of June, 1951.”
Mr. Thiagaiingam frankly admitted that he had overlookedsection 651 of the A. J. Law when he drafted the amended plaintand made the admissions referred to above in the course of pro-ceedings before the District Court. He stated that had headdressed his mind to section 651, he would not have made thoseadmissions and moved to withdraw them as having been made-on a mistaken view of the law.
SHARVANANDA, J.—Ranuv eeru v. Solomon Singho
141
In our view, the provision of the aforesaid section 651 strikesat the iounaauon ot toe 1st defendant’s contention that the finaldecree entered in 6372/P is nuli and void because there was noproper substitution in the room of the parties who died pendingthe action, or because ot the failure to appoint a person to repre-sent the estate of the deceased party. Since this provision 651(1)is deemed to have come into operation on the first day of June,1951, the objection ot the 1st defendant that the final decreeentered in 6372/P is bad cannot be sustained. The decree, in viewof section 651 is a valid and binding decree and is final andconclusive for all purposes against all persons whomsoever andit is not open to the parties in this case to attacK rhe validityof the said decree.
The admission of Counsel for the plaintiffs that the final decreeentered in case No. 6372/P was rendered null and void becauseof the failure to make proper substitution, as claimed by the 1stdefendant, is a mistaken admission in law and is not bindingon the plaintiffs. We, therefore, alldw the retraction of theadmission made by Mr. Thiagalingam, Counsel for the plaintiffs,that issue 10 be answered in the affirmative.
We hold that issue 10 should be answered in the negative andthat the interlocutory and. final decrees in case No. 6372/P arevalid and conclusive decrees entered in terms of the PartitionOrdinance/Act. We also hold that this present action to partitionthe land described as Lot 2 in final partition plan No. 1786 dated15.2.61 made by J. L. Chandraratne, Licensed Surveyor, andfiled of record in case No. 6372/P is an action properly filed andcan be maintained by the plaintiffs for partition of the saidcorpus, namely Lot 2. We remit the case for further trial on thebasis of the above findings. We accept also Mr. Thiagalingam’ssubmission that the said Lot 2 in plan No. 1786 is identicalwith Lot 1 in plan No. 3189 in D. C. Kurunegala 14530/P and isa defined lot representing Mathias Perera’s interest in the largerland. We note that in the amended answer dated 3.6.76 filed bythe 1st defendant in this case, the 1st defendant himself as afact has accepted that the corpus to be partitioned, namely Lot 2,is a divided lot represented as Lot 1 in plan No. 3189 and thatit has been in existence as a divided lot from the date of thesaid plan, i.e., from February. 1951. Further, it has been recordedat the commencement of proceedings on 28.6.76 that the corpusis not disputed.
We remit the case to the District Judge to continue the trialon the basis of the findings recorded above. So much of the
142
SAMARAKOON, C. J.—Appuhamy v. Managing hi
proceedings dated 28.7.66 as are in conflict with the findings ofthis Court referred to above are set aside.
The interlocutory appeal is dismissed with costs payable by the1st defendant-appellant to the 2nd plaintiff-respondent. Eachparty will bear his own costs of the proceedings held on 28.7.66.
Pathirana, J.—I agree.
Wanasundera, J.—I agree.
Appeal dismissed.